State v. Standard Oil Co. , 61 Neb. 28 ( 1900 )

Sullivan, J.

This is an original action instituted by the plaintiff ) prevent the Standard Oil Company, an Indiana corporation, from continuing to do business in this state. The question now before us for decision arises on the attorney general’s application for an order requiring the defendant to permit him to inspect and copy its books and records for the purpose of obtaining evidence to sustain the averments of the petition. Section 394 of the Code of Civil Procedure, under which the motion is made, provides: “Either party or his attorney may demand of the adverse party an inspection and copy, or permission to take a copy of a book, paper, or document in his possession or under his control, containing evidence relating to the merits of the action or defense therein. Such demand shall be in writing, specifying the book, paper, or document with sufficient particularity to enable the other party to distinguish it, and if compliance with the demand within four days be refused, the court or judge, on motion and notice to the adverse party, may in their discretion order the adverse party to give the other, within a specified time, an inspection and copy, or permission to taire a copy of such booh, paper, or document; and on failure to comply with such order, the court may exclude the paper or document from being given in evidence, or, if wanted as evidence by the party applying, may direct the jury to presume it to be such, as the party by affidavit alleges it to be. This section is not to be construed to prevent a party from compelling another to produce any book, paper, or document when he is examined as a witness.” The motion is resisted on the ground that the purpose of the action is to enforce a penalty or forfeiture, and that to grant the order would be to require the defendant to furnish evidence against itself in a criminal case. We are of opinion that the action is in substance, as well as in form, a civil controversy, and that the motion may be granted without violating that provision of the constitution which declares: “No person shall be compelled, in any criminal case, to give evidence against himself.” Constitution, art. 1, see. 12. The petition charges that the defendant has violated the “Anti-trust law” (Compiled Statutes, 1899, ch. 91a), and asks that it be, for that reason, enjoined from further prosecuting its business here. The first section of the act in question defines a trust; the second characterizes as misdemeanors and conspiracies against trade, all acts by any person or persons carrying on, or creating or attempting to create a trust, and provides punishment for the commission of such acts. The third section declares that any domestic corporation which has violated the statute shall forfeit its charter, and may be ousted from its franchises by quo warranto. The fourth section, so far as material to the present inquiry, is as follows: “Every foreign corporation or person not a resident of this state, violating any of the provisions of this act, is hereby denied the right and prohibited from doing any